Fairfax criminal conviction reversal for disturbing ruling to strike the evidence- Virginia criminal defense lawyer weighs in

Fairfax criminal conviction is the risk of going to trial in this or any other county against Virginia felony, misdemeanor or DUI charges. As a Fairfax criminal lawyer , I am heartened that the Virginia Court of Appeals righted the incorrect action of a Fairfax County Circuit Court judge of modifying his mid-jury trial order to preclude a third offender (and second offender) drug felony conviction, rather than only allowing the jury to decide whether the defendant had committed a first offense for either distributing or possessing with intent to distribute a schedule 1 or 2 controlled substance / drug. McBride v. Commonwealth of Virginia 75 Va. App. 556 (2022). McBride undoubtedly waited a long time incarcerated for this appellate vindication of the trial judge’s error in allowing him to be convicted as a subsequent offender that thus led to his consequential mandatory minimum prison sentence of ten years for each count against him.

Why does Virginia law bar a judge from changing his mind about granting a motion to strike evidence?

When the prosecution rests in a Virginia criminal trial, it is essential for the criminal defense lawyer to move to strike the evidence (meaning acquit or amend the criminal charge to a less serious one) based on the prosecution witnesses’ testimony and other prosecution evidence being insufficient to convict / meet the essential elements of the crime charged even if believed. Once a Virginia trial judge grants a motion to strike the evidence, s/he cannot change his or her mind. Doing the opposite, McBride’s Fairfax criminal conviction for being a repeat drug felon arose from his trial judge’s waffling from partially granting his criminal defense lawyer’s motion to strike the allegation of being a repeat offender, to then agreeing for the prosecution to reopen that issue.

Is a prior offense an element for the jury to decide under Virginia law- Lesson from this McBride Fairfax criminal conviction

When a Virginia indictment, warrant of arrest, or summons alleges a prior offense which — if proven — would bring a mandatory minimum sentence, that is an element of the crime that can only be decided by the jury (unless a jury trial is waived or otherwise unavailable) as to whether that element has been proven guilty beyond a reasonable doubt: :We have long held that ‘[c]onviction of a prior like offense is an element of the charge as it was set forth in the indictment, and is also a necessary predicate to an enhanced penalty pursuant to Code § 18.2-248.‘ Berry v. Virginia,  22 Va. App. 209, 213 (1996).” McBride, 75 Va. App. 556 n. 9. This latter pronouncement resolves any issue that may have existed when the federal Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), addressed the jury’s province in determining elements that enhance a defendant’s sentencing exposure. Furthermore, the Virginia Court of Appeals has also confirmed the jury’s province in that respect. Wimbish v. Virginia, 51 Va. App. 474 (2008). Because McBride’s judge granted his motion to strike the charge of being a repeat drug offender, his Fairfax criminal conviction should never have treated him as anything but a first offender.

Why must my Virginia criminal defense lawyer know all these details of the law?

The McBride Fairfax criminal conviction underlines that a win is a win for the criminal defense regardless of how exciting the win looks at first blush. When you interview your potential Virginia criminal defense lawyer, see what s/he says when you ask about how thoroughly the lawyer stays up to date with essential changes in the statutory law and appellate caselaw. One of the benefits of my writing this Fairfax criminal lawyer blog is that I assure all the more that I am regularly keeping on top of such criminal law developments, and strategies for using them to criminal defendants’ best advantage.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against  Virginia DUI, misdemeanor and felony prosecutions. Learn the critically positive difference that Jon Katz can make for your defense by scheduling your free in-person confidential consultation with Jon Katz about your court-pending case, at 703-383-1100.